So, you have a dwindling supply of fresh water for drinking and for wildlife, you have large amounts of contaminated water from old mining operations that we don’t know what to do with and are really expensive to clean-up, and you have the need for large amounts of water for the dramatic increase in fracking operations that don’t need to use fresh or potable water but are presently using both fresh and potable water from these very dwindling supplies.

This looks to be an opportunity too good to pass up. Let’s use the mine water for fracking and stop using the precious fresh water. Sounds easy. And the Pennsylvania Department of Environmental Protection (PADEP) is trying to do just that.

Based on a recommendation by Governor Corbett’s Marcellus Shale Advisory Commission, the PADEP published a white paper in January detailing how the agency intends to review proposals from Oil & Gas drillers on using Mine Influenced Water (MIW) for drilling operations (PADEP white paper).

The policy is supported by environmental organizations and the Oil & Gas industry, and it should succeed as long as we can sort out the liability issues.

MIW is a huge legacy problem from the mining industry. MIW includes either water contained in a mine pool or a surface discharge of water caused by mining activities and is known by many names: mine drainage water (MDW), acid mine drainage (AMD) or acid rock drainage (ARD).

Although occasionally not acidic when flowing through and over carbonate rocks, mine waters are generally highly acidic. Most rock being mined has abundant iron sulfide minerals which oxidize when exposed to air and water. This liberates hydrogen ions for the acidity, turns insoluble sulfide into very soluble sulfate, and creates rust from reduced iron, a fascinating, if annoying, chemical process.

There are many types of sulfide minerals, but pyrite and marcasite, the two structural forms of FeS2 that are especially common in coal regions, are the major acid-producers. Upon exposure to water and oxygen, these minerals oxidize to form acid-, iron- and sulfate-rich drainage. It becomes very hard to reverse this process and lock the metals up again, although it can be done.

Pennsylvania’s environmental problems with coal mining began before the Civil War, and communities in northeastern and southwestern parts of the state still live with that legacy.

There are lots of abandoned coal mines. In the 1950s and 60s, companies just walked away from them, leaving behind a mess. Some mines caught on fire while others filled up with water that overflowed into streams and rivers. Coal waste mountains exposed to air started churning out acidic water, polluting groundwater and streams.

According to the PADEP, over 300 million gallons of mine-polluted water flow into the State’s rivers and streams every day, resulting in more than 4,000 miles of biologically dead rivers and streams (StateImpact/NPR). Encouraging drillers to use this water to frack natural gas wells brings obvious environmental benefit.

Last year, drillers in the U.S. used 40 billion gallons of fresh water to frack. This is almost half of the acid mine drainage generated each year. Pennsylvania is the second largest user behind Texas, so this policy would make a real difference.

But it’s all about liability. No one wants to get sued for trying to do the right thing.

So how to convince the drillers that they will not incur a major environmental liability?

Anyone considering the use of MIW for natural gas extraction activities has the potential to incur long-term liability because just the act of moving contaminated water gives you total responsibility for it in the future. If there is any chance that this water could impact fresh water, then you would have to treat it, no matter how much time had passed.

As expected, drilling companies have been slow in taking up this method because they only need this water temporarily. Getting 50 years of liability for two weeks of water seems risky.

Addressing this liability issue was the purpose of Pennsylvania’s Environmental Good Samaritan Act, which provides protection from civil liability for projects involving MIW. While not perfect, it is:

“intended to encourage the improvement of land and water adversely affected by mining and oil and gas extraction, to aid in the protection of wildlife, to decrease soil erosion, to aid in the prevention and abatement of the pollution of rivers and streams, to protect and improve the environmental values of this Commonwealth and to eliminate or abate hazards to health and safety. It is the intent of the General Assembly to encourage voluntary reclamation of lands adversely affected by mining or oil or gas extraction. The purpose of this chapter is to improve water quality and to control and eliminate water pollution resulting from mining or oil or gas extraction or exploration by limiting the liability which could arise as a result of the voluntary reclamation of abandoned lands or the reduction and abatement of water pollution.”

Meaning, the problem of MIW is so extensive and so intractable, that the State welcomes any attempts at helping even if they are not perfect, as long as they don’t make the problem worse. This is a practical approach that needs to be expanded on all fronts in all States so that “the perfect does not become the enemy of the good.”

On the other hand, this Act is not intended to shield parties already responsible for treatment and clean-up of MIW or its sites, or who are held liable for other reasons.

If you think the Environmental Good Samaritan Act isn’t safe enough, the driller can obtain a Consent Order and Agreement with PADEP under which PADEP would agree not to hold the user liable for long-term treatment obligations, so long as the user meets specific conditions spelled out ahead of time. These can be requirements for sampling and characterization of the water, as well as specific plans on how the water would be transported and stored.

The Consent Order and Agreement would theoretically limit the user’s liability to the state, but would not address civil liability to third parties, like a landowner. Maybe a combination of the Act and the Agreement together would be sufficient.

The best way for drillers to use this water is to estimate on the low side and make up the rest with other water that is not contaminated, such as storm water drainage or fresh water. Because most of the water actually used for fracking stays underground in what is already non-potable deep formation water, then if the driller does not use an access of water, there should be no significant liability.

The U.S. Department of Energy’s Subcommittee on Shale Gas Production shares the prevailing view that the risk of fracturing fluid leakage into drinking water sources through fractures made in deep shale reservoirs is remote (DOE Shale Gas). As long as care is taken to properly drill and seal wells (A Good Cement Job), there should be no significant environmental impact from using MIW for the fracking.

In addition, we have new technologies now for treating MIW, particularly new chemical filtering methods using natural materials in permeable reactive barriers that intersect the flow paths of MIW (Applied Geochemistry). Since the greatest difficulty in treatment is getting the contaminated water to the treatment system, collecting the water for fracking is half the battle. If it does pose a problem, it can be more easily treated at one point after use.

This white paper is an excellent first step by a State to address environmental issues stemming from both MIW and fracking. In the end, however, States need to issue a general permit covering the use of MIW for fracking, perhaps even rewriting their Oil & Gas regulations completely to include these types of innovative methods directly.

We need to encourage all beneficial strategies for correcting the mistakes of the past.